Citation: Munu Munu. v. Aviva Insurance Company, 2021 ONLAT 20-005924

Release date: 06/08/2021

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Josee Munu Munu

Applicant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant:

Francesco Vumbaca, Student at Law

For the Respondent:

Brenden W. Carruthers, Counsel

Interpreters:

Alain Ambele

Michael Lashley

Alexandra Taillefer

Linda Almestiri

Mamy Ntole

Heard by Videoconference:

April 28-30, May 3, 4, 6, 7, 2021

1Josee Munu Munu (“applicant”) was involved in a motor vehicle accident on April 30, 2018 (“accident”). The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). ¹

2Aviva General Insurance (“respondent”) denied benefits claimed by the applicant.

3The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal“).

4At the case conference on September 22, 2020, the Tribunal ordered that the following preliminary and substantive issues would be determined at this hearing.

ISSUES

5The issues set to be determined in this hearing were:

Preliminary Issue:

a. Is the applicant barred from claiming non-earner benefits (“NEB”) for failure to comply with the statutory requirements pursuant to s. 36(2) of the Schedule?

Substantive Issues:

i. Are the applicant’s injuries predominantly minor injuries as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?²

ii. Is the applicant entitled to NEB in the amount of $185.00 per week from May 28, 2018 to April 30, 2020?

iii. Is the applicant entitled to a medical benefit in the amount of $2,581.08 for physiotherapy and chiropractic treatment recommended by Toronto Healthcare Clinic in a treatment plan (OCF-18) dated May 15, 2018?³

iv. Is the applicant entitled to a medical benefit in the amount of $200.00 (original treatment plan in the amount of $1,255.95, previously approved in the amount of $1,055.95) for physiotherapy, recommended by Toronto Healthcare Clinic in a treatment plan (OCF-18) dated April 6, 2019?⁴

v. Is the applicant entitled to payment for the cost of examinations in the amount of $200.00 for a psychological pre-screening assessment conducted at Toronto Healthcare Clinic May 7, 2019?

vi. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

vii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

Preliminary Issue:

6The applicant is not entitled to NEB because she failed to submit a completed OCF-3, disability certificate, pursuant to section 36(2) of the Schedule. The applicant’s claim for NEB is dismissed.

Substantive Issues:

7The applicant is not entitled to NEB as claimed in issue ii. or the $200.00 payment for a psychological pre-screening assessment as claimed in issue v. Issues i., iii. and iv. were resolved prior to the hearing and are not determined by me. There is no interest. No award is made. I decline to add costs as an issue, or to determine it. The applicant’s claim is dismissed.

LAW

8Section 36(2) of the Schedule provides that an applicant for NEB shall submit a completed disability certificate with his or her application under s. 32.

9Section 12 of the Schedule requires an insurer to pay NEB to an insured person who does not qualify for an income replacement benefit and who suffers from “a complete inability to carry on a normal life” as the result of an impairment sustained in an accident. The impairment must arise within 104 weeks after the accident.

10Section 3(7)(a) provides that a person suffers a “complete inability to carry on a normal life” if that person suffers an impairment as a result of the accident that continuously prevents him or her from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

11The onus is on the applicant to prove that he or she suffers from a complete inability to carry on a normal life. This standard has often been cited as being one of the most difficult thresholds to meet under the Schedule.

12The Ontario Court of Appeal⁵ set out the approach to determining whether an insured has satisfied the s. 3(7) test:

i) There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident.

ii) The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period of time prior to the accident. The duration will depend on the facts of the case.

iii) All of the applicant’s pre-accident activities must be considered but greater weight may be placed on activities that were more important to the applicant’s pre-accident life.

iv) The applicant must prove that his/her accident related injuries continuously prevent him/her from engaging in substantially of his/her pre-accident activities. This means that the disability or incapacity must be uninterrupted.

v) “Engaging in” should be interpreted from a qualitative perspective. Even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging” in the activity.

vi) If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities.

13Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.⁶

ANALYSIS

Preliminary Issue: Is the Applicant Entitled to Claim NEB – Failure to Comply With s. 36(2) of the Schedule?

14I find that the applicant is not entitled to NEB because she failed to submit a “completed” disability certificate as required by the Schedule.

15Section 36(2) of the Schedule requires an applicant for NEB to submit a completed disability certificate. Section 36(3) provides that an applicant who fails to submit a completed disability certificate is not entitled to NEB for any period before the completed disability certificate is submitted.

16These provisions put the onus on the applicant to make sure that a completed disability certificate is submitted before entitlement to a benefit begins. This provides the opportunity for the insurer to determine entitlement and how to respond to the application. The statutory requirement to submit a “completed” disability certificate can only be reasonably interpreted to mean completed in a manner that certifies that the applicant meets the criterion for NEB set out under s. 12 of the Schedule. This statutory requirement is not fulfilled by the applicant submitting a disability certificate certifying the applicant does not meet criterion for NEB. The requirement in s. 36(2) is not procedural, it is substantive and there is good reason for it.⁷

17The test for entitlement to NEB is the complete inability to carry on a normal life as the result of an impairment sustained in an accident. In the May 8, 2018 disability certificate, applicant’s chiropractor, Dr. Khaira, certifies that the applicant does not meet the criterion for NEB by answering “no” to the question “Does the applicant suffer a complete inability to carry on a normal life? (i.e. Has the applicant sustained an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident?)”. The opinion of Dr. Khaira is that the applicant does not meet the criterion for NEB. No other disability certificate was ever put forward by the applicant. The respondent denied the applicant’s claim for NEB by Explanation of Benefits (“EOB”) dated June 6, 2018 based on the disability certificate provided which indicates the applicant is not eligible for NEB. This EOB sent to the applicant and her counsel.

18The applicant submits that the disability certificate was made eight days after the accident and it would be impossible to opine on the applicant’s disability eight days after the accident.

19I do not accept the applicant’s submission that a disability certificate could not be made eight days after the accident. Dr. Khaira did so. Even if the applicant felt this did not accurately reflect her medical condition post-accident, she never provided any other disability certificate.

20Further, for the reasons set out below, I find that the applicant’s medical evidence at this hearing is insufficient to establish her eligibility for NEB, in addition to the disability certificate certifying that she does not meet the test for NEB.

21The applicant also submits that neither s. 36 (2) nor s. 3 (1) which defines a disability certificate require the disability certificate to be supportive and relies on several cases⁸. I have considered all of the case law submitted by the applicant and find it unhelpful. The Beltrane and Moran cases were decided under legislation no longer in effect, and its transitional rules respectively. Furthermore, other Tribunal decisions are not binding on me and are confined to their facts. Finally, the consumer protection purpose of the Schedule on which the Court relied in the Smith case, does not negate the applicant’s obligation to fulfill the statutory requirements of the Schedule.

Is the Applicant Entitled to NEB?

22The applicant submits that she meets the test for NEB as she suffers from a complete inability to carry on a normal life as a result of the accident.

23Applying the principles I outlined above in paragraph 12, I find that the applicant’s evidence does not establish on a balance of probabilities that she suffers from a complete inability to carry on a normal life as a result of the accident for the following reasons.

24The applicant testified that although she had some pain pre-accident, her pain wasn’t chronic and severe. She could wear high heeled shoes and wasn’t having any trouble walking. The applicant testified that walking was one of her main occupations. She walked at the park three or four mornings a week, to the grocery store with a cart and a cane twice a week, attended church twice a week where she sang and danced and sometimes prepared food, walked and swam at the YMCA, went on outings with her grandchildren, children and her friends two or three times a week to have coffee and walked to the bus. The applicant also testified that she cleaned her home weekly, prepared meals and gardened.

25The applicant testified that post-accident she is weak, her cheek is numb and her various medical conditions are worse including headaches, vertigo, dizziness, ringing in her ears, pain in her neck, shoulders, back, fingers, hands and both knees. She stated that she cannot walk very far without stopping for a break, cannot fasten buttons on her clothing, needs help getting dressed, cannot lift pots, take the bus, exercise at the gym, clean her home, prepare food, meet her friends for coffee, or go on outings with her children and grandchildren. The applicant testified that she has a lot of pain in all of her body and has trouble sleeping. The applicant described her pain as more frequent and more severe post-accident and said she cannot stand up or sit for a long time, is scared when riding in the car, is under stress, now goes to church only about twice every two months and cannot dance at church or at home because her neck, knees and feet all hurt. The applicant testified that her son and other children do her shopping, clean her home and make her food.

26The applicant failed to substantiate her evidence about her pre-accident and post-accident life by putting forward any evidence from her adult children, church friends or other friends even though the applicant indicated that her family, friends and church activities are very important to her and that these activities were severely affected as a result of the accident.

27Dr. Moran who was the applicant’s family physician up until the date of the accident did not treat or assess the applicant after the accident and could only testify as to her pre-accident medical condition.

28None of Dr. Moran’s records support the applicant’s testimony that she was active, particularly in walking, prior to the accident. Dr. Moran’s testimony and records establish that the applicant had complained to him on numerous visits of pain including her legs, feet, knees, back, both hands for more than a decade before the accident and had been referred to physiotherapy and other treatments pre-accident. The applicant had been diagnosed with osteoarthritis years before the accident. Dr. Moran testified the applicant had chronic pain since 2003 which was the disability which entitled her to ODSP benefits. Dr. Moran also said the applicant had a history of chronic pain including both knees, hands and lower back, varicose veins and sleep apnea and asthma.

29In 2017, Dr. Moran noted leg, knee, back pain, arthritis, dizziness. Through the years Dr. Moran referred the applicant to physiotherapy for chronic back, knee and lumbar pain, and prescribed a knee and wrist support. Dr. Moran’s records note constant right shoulder pain in 2008. Dr. Moran completed a disability tax credit form for Canada Revenue Agency in January 2018 in which he opined that the applicant was markedly restricted in walking since 2014, could walk only up to a block without stopping, was unlikely to improve and was severely restricted in physical abilities. Dr. Moran’s pre-accident records also note that the applicant cannot button or zip up clothing or put on shoes and has limited mobility with both hands due to pain and needs help 100 percent of the time. Dr. Moran referred the applicant to a sleep clinic in February 2018 for sleep issues. Dr. Moran testified that the applicant was assisted by one of her children when she came to see him. Records from the applicant’s other physicians add little additional relevant information.

30Following the accident, the applicant did not seek medical attention until the next day when she went to her daughter’s family physician who diagnosed back, neck and shoulder strain, did not prescribe any medication, recommended Tylenol and physiotherapy and did not note any head injury. No imaging was ordered except any audiology test because of ringing in her ears. This test was within normal limits. Two days post-accident the applicant saw her cardiologist, Dr. Galiwango, who noted arthritis in her knees and lack of activity and recommended she increase her activity to 20-30 minutes a few times a week.

31I attribute no weight to the pre-screening report of the applicant’s psychologist, Dr. Shaul, who in the May 7, 2019 report indicated that the applicant suffers from pain, irritability, frustration, depression, sleep difficulties, social decline, cognitive decline and nervousness when travelling in a vehicle as a result of the accident. I find the opinion of Dr. Shaul to be unsupported by any other significant medical evidence put forward by the applicant. Further, Dr. Shaul admitted in cross-examination that he never met the applicant, never spoke to the applicant, did not review the applicant’s medical records, did not draft the report he signed, and relied on a member of his staff whose name he could not remember to interview the applicant and prepare his report based primarily on the subjective reporting of the applicant.

32Although the applicant’s chiropractor, Dr. Minella, indicates in his report that the applicant suffers a complete inability to carry on a normal life, Dr. Minella also testified that he knew little of the applicant’s pre-accident activities and capabilities except what she told him. He admitted the applicant did not tell him she had dizziness, headaches, tinnitus, sleep issues, problems with walking and was prescribed a knee brace pre-accident. Dr. Minella did not complete a disability certificate. For these reasons, I give Dr. Minella’s report little weight and I find it does not establish that the applicant suffers a complete inability to carry on a normal life.

33Taken in totality, the weight of the applicant’s medical evidence does not establish on a balance of probabilities that she suffers from a complete inability to carry on a normal life as a result of the accident. The applicant’s account of her pre-accident activities is not supported by her pre-accident medical records. The applicant’s medical history instead indicates she had chronic pain including both legs, knees, shoulder pain, hands and lower back, varicose veins, osteoarthritis, sleep issues, asthma, and dizziness resulting in difficulty with clothing and putting on shoes, markedly restricted walking since 2014 and severely restricted physical abilities.

34Given this medical history, it is not likely the applicant was as active pre-accident as she described. Furthermore, even the applicant acknowledged that she still goes to church, just not as often as she did pre-accident, and that she is able to travel extensively post-accident. The applicant testified that she travelled from Canada to Congo in August 2019 and stayed there until February 2020. This journey required her to be on an airplane for many hours and although she required a wheelchair at the airport and experienced pain as she described, she was able to undertake this trip. In the summer of 2020, she went back to Congo for another three weeks. Although the applicant denied any other trips, the Tribunal’s September 22, 2020 case conference Order records that she was outside of Canada at that time. The ability to go on lengthy trips within the 104-week period is inconsistent with the applicant’s submission that she is completely unable to carry on a normal life as a result of the accident.

35I also find that the applicant failed to establish that any of her post-accident impairments were caused by the accident. No physician has opined that any of the applicant’s medical issues and conditions are caused by the accident, except Dr. Shaul who never met, saw or spoke to the applicant. The applicant’s chiropractor, Dr. Minella, admitted in cross-examination that all he knew about the applicant’s pre-accident medical condition came from the applicant’s self-reporting which makes his opinion that the applicant met the eligibility test for NEBs unpersuasive. Dr. Moran, who did have knowledge of the applicant’s medical condition pre-accident, never saw the applicant post-accident.

36Although the applicant also submits that a review of the respondent’s adjuster log notes suggest the respondent has not taken into consideration the complete medical file in denying NEB, having heard the testimony of the respondent’s adjusters, Brittany Smith and Devin France, and reviewed the evidence submitted by both parties, I see no indication that the respondent failed to take into consideration all of the medical and other information it had on file in denying NEB.

37The applicant has put forward no significant reliable medical evidence that she is prevented from carrying on a normal life as a result of any injuries from the accident. This is the applicant’s burden.

38Having reviewed all of the evidence and based on the totality of the evidence, I find that the applicant has not discharged her burden to establish that she suffers from a complete inability to carry on a normal life as a result of the accident and as a result is not entitled to NEB for the period claimed.

Is the Applicant Entitled to the $200.00 for a Psychological Pre-Screening Assessment as Claimed in Issue v?

39I find that the applicant is not entitled to the $200.00 for the psychological pre-screening assessment because the applicant failed to establish that it is reasonable and necessary.

40Dr. Shaul who signed the pre-screening assessment never met, saw or spoke to the applicant and brought none of his professional skills directly to the assessment of the applicant. As a result, this assessment adds nothing to the understanding of the applicant’s medical condition post-accident and its content, cost and utility is neither reasonable nor necessary.

Interest

41Interest is not payable as no payments are overdue.

Award

42Section 10 of Regulation 664, R.R.O. 1990, Insurance Act, provides that a special award may be granted if the respondent unreasonably withheld or delayed payments.

43The applicant submits that the respondent failed to carefully consider all of the evidence in it’s possession, including the medical records of Drs. Moran, Shaul, Silver, and Minella, as well as her ODSP file and the treatment plans, and denied benefits to the applicant based on a hunch. The applicant cites case law in support of the proposition that the respondent had an ongoing obligation to continue to adjust the file in light of new information.

44There was no payment unreasonably withheld or delayed. The respondent was entitled to deny the NEB for the reasons it expressed which is not an unreasonable position given the information it had been provided with. Further, there is no evidence that the respondent did not review information provided, did not continue to adjust the file in light of new information, or failed to seek new information appropriately. For these reasons, there is no award.

Costs Requested by the Applicant

45The applicant requests costs under Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017, as amended, (“Rules”) and the Insurance Act, R.S.O. 190, c. I. 8 (“Act”). The applicant argues that the respondent has acted unreasonably, frivolously, vexatiously or in bad faith. Further, the applicant argues that she has been forced to participate in this hearing in order to advance her claims and that the respondent did not remove the applicant from the MIG until one week before the hearing, denied benefits based on a checked box in an OCF-3, disability certificate, failed to request further document and generally showed no interest in the applicant.

46The issue of costs was not referred to me for determination in the Tribunal’s case conference Order made on consent of both parties, and I decline to add it as an issue or to determine it.

47Had the issue of costs been properly before me, I would not have awarded costs to the applicant under Rule 19. I am not satisfied that the conduct of the respondent has risen to the level of acting unreasonably, frivolously, vexatiously or in bad faith as required by Rule 19. The evidence shows that the respondent removed the applicant from the MIG March 25, 2021, denied benefits for the reasons it expressed and sought further information about the applicant’s medical condition appropriately. There is no evidence before me that the respondent “failed to show interest in the applicant”.

ORDER

48For the reasons outlined above:

a. On the preliminary issue, the applicant is not entitled to a claim NEB because she failed to submit a completed OCF-3, disability certificate that supports her NEB claim pursuant to the Schedule. The applicant’s claim for NEB is dismissed.

b. On the substantive issues, the applicant is not entitled to NEB as claimed in issue ii or the $200.00 payment for a psychological pre-screening assessment as claimed in issue v. Issues i., iii., iv. were resolved prior to the hearing and are not determined by me. There is no interest. No award is made. I decline to add costs as an issue or to determine it. The applicant’s claim is dismissed.

Date of Issue: June 8, 2021